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Family Law

A Family Law Conundrum: Medical Marijuana Use and Parenting Time

How do our judges balance a parent’s legal use of
marijuana while caring for young children, and impaired judgment stemming from
its use?

Richard L. Scholz

Licensed possession and use of medical marijuana has
been legal in Arizona since 2011. It is generally accepted that, for certain
health-related issues, marijuana provides varying degrees of pain relief. It is
also generally accepted that marijuana is a mood-altering drug that can impair normal judgment and physical coordination.

What was not generally foreseen when voters approved the
2010 medical marijuana ballot measure is the conundrum that our Superior Court
judges would ultimately face in family law cases, i.e., balancing a parent’s
legal use of marijuana while caring for young children, and impaired judgment
stemming from its use.

This issue is routinely brought to light during family
law cases, in situations where a judge must make decisions about parenting time
when one of the parents has a medical marijuana license. Must the judge ignore
the safety issues of a parent caring for their children while their normal
judgment is being impaired by the legal use of marijuana?

Irreconcilable Issues?

The opposing forces of legal marijuana consumption and
risk of harm to a minor child appear to be irreconcilable issues.

The parent who uses medical marijuana will argue that
they are doing nothing wrong, they have a State-issued license, no law is being
broken, and the Court has no authority to alter or restrict their parenting time
for exercising their rights under that license. At the same time, the judge has
a duty to protect minor children from harm when family law matters come before
the court.

Court-Imposed Restrictions

The conclusion that many judges reach is logical, though
restrictive on the licensed user of marijuana – i.e., ordering the marijuana
user not to consume any marijuana when they are parenting their child, in
addition to not using marijuana for some period of time before the child comes
into their possession.

This would seem to protect the child from harm due to
impaired judgment by the parent, but doesn’t that infringe on the parent’s right
to medical relief for a legitimate medical issue? Clearly, the judge’s
restriction imposes on a medical treatment plan, and the parent needing the pain
relief that marijuana allegedly gives them must choose between that pain relief
and parenting time with their children.

Further, the judge’s directive doesn’t solve the issue.
When a parent has a child in the home, who is to say what happens behind closed
doors?

More Questions

As long as marijuana continues to be mood- or
mind-altering, the conundrum will continue. What if marijuana use were made
completely legal? Would that resolve the conundrum? Alcohol is legal and can
impair judgment, and yet parents are not restricted from consuming alcohol when
they parent their children. Excessive use of alcohol, however, is
routinely addressed in family court settings. It would appear that central to
this issue is the belief that consumption of one marijuana joint is
mind-altering.

Additionally, second-hand smoke can be ingested by the
child. Do we risk a child being exposed to second-hand marijuana smoke? I
represented a parent in a case in which a child under the age of one
year tested positive for marijuana on a hair follicle test, because the child’s
family openly smoked marijuana in the child’s presence. Needless to say, the
child was removed from that situation.

Another factor that may cause judges to continue to
restrict parenting time is the apparent proliferation of medical marijuana
licenses; what was once rarely seen is becoming much more common. Does the
frequency of the medical marijuana licenses being seen in court make judges
wonder whether the usage is necessary medical relief or just an excuse to smoke
weed?

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